Filed
4/26/13 P. v. Rey CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
REYNALDO REY,
Defendant and
Appellant.
F063860
(Super.
Ct. No. F11901553)
APPEAL from
a judgment of the Superior Court of
County. John F. Vogt, Judge.
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Barton
Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Reynaldo Rey
was sentenced to a third strike (Pen. Code, § 667, subds. (b)-(i))
convicted him of three felonies and found true the allegation that he had
served four prior prison terms within the meaning of section 667.5, subdivision
(b). Rey argues the trial court erred in
instructing the jury, abused its discretion in failing to grant relief from the
three strikes sentence pursuant to People
v. Superior Court (Romero)
section 654 to stay the sentence on one of his convictions. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The Evidence
Benjamin Dias was at home when he
heard the sound of the motor of his vehicle running. He looked out the window and saw a young man
in his vehicle. As Dias approached the
vehicle, the man drove away. Rey was not
the person who stole the vehicle. Dias
did not know Rey and never gave Rey permission to drive the vehicle.
Fresno Police Officer Daniel
Vandersluis was patrolling with Officer Justin Baroni on the night in
question. They were in full uniform and
driving a marked police vehicle. At approximately
2:30 a.m., Vandersluis observed a Honda Accord being driven on a public
street. Since there had been numerous
thefts of Hondas in the area, the officers checked the records to see if the
vehicle had been reported stolen. The
officers learned the vehicle had been stolen.
The vehicle then sped off as if fleeing from the officers. Vandersluis turned on the vehicle’s siren and
the red and blue lights and chased the vehicle.
While Vandersluis could not estimate the speed of the vehicle, it was an
unsafe speed for the area. Both vehicles
proceeded through several stop signs without stopping. Finally the Accord approached a
T-intersection, failed to slow sufficiently, and crashed into the gate that was
in front of the building on the other side of the intersection.
The sole occupant of the Accord,
Rey, exited the vehicle and began running.
Vandersluis stopped his vehicle and began pursuit. Vandersluis yelled at Rey to stop and
identified himself as a police officer.
Rey continued to run and repeatedly reached for his waistband while
fleeing. Vandersluis ordered him to show
his hands. Rey looked over his shoulder
at Vandersluis. Rey continued to run and
refused to show his hands. Vandersluis
shot Rey with his Taser as they entered a dark alley. Vandersluis decided to use the Taser because
(1) he was closing the gap between Rey and himself and knew he was going to
catch him; (2) they were entering a dark alley; (3) Rey was taller than both
Vandersluis and Baroni; (4) Rey kept reaching for his waistband where suspects
typically keep weapons; and (5) Vandersluis did not want to get into a physical
confrontation in a dark alley that would place in danger both his life and
Baroni’s life.
Rey fell forward when the darts
from the Taser struck him. Vandersluis
and Baroni attempted to put handcuffs on Rey.
Rey began kicking and swinging his arms.
Vandersluis was kicked in the leg and struck twice on his face by Rey. Vandersluis cycled the Taser a second time,
ending Rey’s resistance.
Baroni’s testimony about the events
leading to Rey’s arrest was consistent with Vandersluis’s testimony. After Rey was placed in handcuffs, he was
transported by ambulance to the hospital for medical clearance. Baroni accompanied Rey to the hospital in the
ambulance. After Rey was cleared
medically, he was taken to police headquarters where he gave a statement. Rey admitted he had contacted Vincent
Mallory, who was known in the neighborhood to steal vehicles, and arranged to
borrow a vehicle. Rey did not ask any
questions when he met Mallory, but Rey thought the vehicle probably was
stolen. Rey said he became scared when
the officers pulled behind him, so he drove off. Rey admitted he saw the red and blue lights
from the police vehicle and heard the siren.
He knew he was being chased by officers from the Fresno Police
Department but continued driving because he was scared and did not want to get
into trouble.
Information
The
information charged Rey with four felonies, to wit: unlawful driving of a vehicle (Veh. Code,
§ 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d,
subd. (a)), resisting an executive officer (Pen. Code, § 69), and evading
a police officer with willful and wanton disregard for the safety of persons
and/or property (Veh. Code, § 2800.2, subd. (a)).
two prior convictions that constituted strikes within the meaning of section
667, subdivisions (b) through (i), and had served four prior prison terms
within the meaning of section 667.5, subdivision (b).
The Verdict and Sentencing
The jury found Rey guilty as
charged and in bifurcated proceedings
found each of the enhancements true.
The trial court denied Rey’s motion
for relief pursuant to Romero and
sentenced Rey to a third strike term on count 1 of 25 years to life and
concurrent third strike terms of 25 years to life on counts 3 and 4. In addition the trial court imposed four
enhancements of one year each pursuant to section 667.5, subdivision (b) for
the four prior prison terms served by Rey.
DISCUSSION
Instructional
Error on Count 3 -- Resisting Arrest
The arresting officers, Vandersluis
and Baroni, testified Rey ran from the stolen vehicle after he crashed into the
fence. The officers gave chase and
Vandersluis deployed his Taser when Rey attempted to enter a dark alley. During the chase, Rey repeatedly reached for
his waistband, as if trying to locate a weapon.
After he was shot with the Taser, Rey continued to resist by attempting
to strike the officers, causing Vandersluis to deploy the Taser a second
time. It was only at this point that Rey
became compliant.
Rey’s actions after he was shot
with the Taser resulted in the conviction for violating section 69 in count
3. As relevant, this section
criminalizes the use of force or violence to resist an officer in the
performance of his duty. Rey cites “the well-established rule that
when a statute makes it a crime to commit any act against a peace officer
engaged in the performance of his or her duties, part of the corpus delicti of
the offense is that the officer was acting lawfully at the time the offense was
committed. [Citations.]†(People
v. Jenkins (2000) 22 Cal.4th 900, 1020.)
The jury must decide whether the officers acted lawfully if there is a
factual dispute. (Ibid.)
Two cases, People v.
White (1980) 101 Cal.App.3d 161, 167 and People v. Olguin (1981) 119 Cal.App.3d 39, 44-45, hold that an
officer using excessive force is not acting lawfully. Rey argues there was evidence from which the
jury could have concluded that Vandersluis acted unlawfully because he used
excessive force when he deployed the Taser. Accordingly, Rey asserts the
trial court erred in failing to instruct the jury that it must decide if
Vandersluis acted lawfully.
The trial court instructed the jury on the elements of a violation of
section 69 pursuant to CALCRIM No. 2652.
This instruction states the elements of the offense and includes an
optional portion that informs the jury that “A peace officer is not lawfully
performing his or her duties if he or she is … using unreasonable or excessive
force in his or her duties.†Rey’s
counsel requested the optional portion of the instruction. The trial court refused the request, finding
“there was never any evidence that the use of force was not appropriate.â€
“‘“It is settled that in criminal cases, even in the
absence of a request, the trial court must instruct on the general principles
of law relevant to the issues raised by the evidence. [Citations.]
The general principles of law governing the case are those principles
closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.†[Citation.]’†(People
v. Breverman (1998) 19 Cal.4th 142, 154.)
“[A] defendant has a right to have the trial court, on its own
initiative, give a jury instruction on any affirmative defense for which the
record contains substantial evidence [citation]—evidence sufficient for a
reasonable jury to find in favor of the defendant [citation]—unless the defense
is inconsistent with the defendant’s theory of the case [citation]. In determining whether the evidence is
sufficient to warrant a jury instruction, the trial court does not determine
the credibility of the defense evidence,
but only whether ‘there was evidence which, if believed by the jury, was
sufficient to raise a reasonable doubt .…’
[Citations.]
v. Salas (2006) 37 Cal.4th 967, 982-983.)
We agree with the trial court that there was no evidence
Vandersluis used unreasonable force when he arrested Rey. Vandersluis explained why he decided to
deploy the Taser, and Rey did not present any expert testimony that suggested the
use of the Taser was inappropriate. The
jury was left with no evidence on which it could conclude that deploying the
Taser was unreasonable force.
Nor do the circumstances suggest the use of the Taser was
unreasonable. Rey fled in a stolen
vehicle when Baroni and Vandersluis sought to stop him. He drove at unsafe speeds through a
residential neighborhood. He finally
lost control of the vehicle and crashed into a fence. Rey then jumped out of his vehicle and ran
from the officers. He repeatedly reached
for his waistband as if attempting to retrieve a weapon. He ignored orders to stop and show his hands,
even though he admitted he knew he was being chased by police officers. Finally, Vandersluis deployed his Taser
because Rey ran towards a dark alley and it was necessary for officer safety. Moreover, the only testimony on the issue was
that use of deadly force would have been reasonable under these
circumstances. If use of deadly force
was reasonable, deploying a Taser also must have been reasonable. These circumstances unequivocally establish
the force used was reasonable. Rey’s
argument thus fails.
II. Refusal to Strike a Prior
Conviction
Rey contends
the trial court erred when it refused to exercise its discretion and strike one
of his prior convictions pursuant to section 1385, subdivision (a). (Romero,
supra, 13 Cal.4th at p.
504.) Rey does not challenge the trial
court’s decision directly, but instead claims the trial court misunderstood the
facts when making its decision.
The facts the trial court allegedly
misunderstood revolve around prior courts granting Rey relief from a three
strikes sentence pursuant to Romero. Rey acknowledges that at two prior sentencing
hearings, the trial court exercised its discretion and struck a prior
conviction, thus allowing Rey to avoid a life sentence under the three strikes
law, an assertion that the People do not contest. Because he had received the benefit of a
prior strike conviction being struck on only two occasions, Rey claims the
trial court abused its discretion because “the factual findings critical to its
decision find no support in the evidence.â€
(People v. Cluff (2001) 87
Cal.App.4th 991, 998.)
The following statement was made by
the trial court when it explained why it was not going to exercise its
discretion in this case: “The Court has
noted that on several occasions
sentencing courts have exercised discretion and decided that it was in the
interest of justice it could not impose the full sanction of the Three Strikes
Law.†(Italics added.) Rey asserts that because he was granted
occasions, the trial court’s statement that he had been granted
factually incorrect and thus resulted in an abuse of discretion. We disagree.
The trial court made a thorough
record of the reasons why it refused to grant Romero relief.
“The Court has made a record of
all of the input considered in the sentencing process for this morning,
including a review of the prior RPO’s that date back to the ‘80s. The court has paid particular attention to
the criminal history as set forth beginning on page 5 continuing through page
6, through page 7, three full pages of criminal conduct dating back to when the
defendant was 18 years old.
“The court has noted that on
several occasions sentencing courts have exercised discretion and decided that
it was in the interest of justice it could not impose the full sanction of the
Three Strikes Law. At this point in time
having heard the evidence, understanding that this particular case does not involve
the type of conduct that registers two separate strikes, both of which are
robberies, taking particular note of the numerous annual and in some cases even
shorter than annual parole violations, notwithstanding the requests of the
defendant personally, requests of the significant other, mother of his child,
the Court cannot articulate any basis for the proper exercise of discretion to
strike any of the prior strike priors.â€
We begin by noting that the
distinction Rey seeks to make between “several occasions†and “two occasionsâ€
hardly can be considered a factual finding with no support in the
evidence. But even if it were an
erroneous factual finding, the difference between “several occasions†and “two
occasions†is not a critical fact. The
trial court explained that Rey had a long criminal record and had been granted
leniency in the past, yet he continued to commit crimes. Under these facts, we are convinced that if
an error occurred, and we doubt there was error, that error was harmless under
any standard of review.
We also note that with the passage
of Proposition 36 in November 2012, Rey may be granted relief from his three
strikes sentence, potentially making this issue moot.
III. Section 654
The trial court imposed a third
strike sentence of 25 years to life on count 1, unlawful driving of a vehicle,
in violation of Vehicle Code section 10851, subdivision (a), and a
concurrent third strike sentence of 25 years to life on count 4, evading a
police officer with willful and wanton disregard for the safety of persons or
property, in violation of Vehicle Code section 2800.2, subdivision
(a). Rey asserts the trial court was
required to stay the sentence on count 4 pursuant to the provisions of section
654.
“Section 654 precludes multiple
punishment for a single act or omission, or an indivisible course of
conduct. [Citations.]†(People
v. Deloza (1998) 18 Cal.4th 585, 591-592.)
Imposition of concurrent sentences is incorrect if section 654
prohibits punishment for both crimes, even though there is no practical
difference between the two approaches. (
353.) Instead, the correct approach is
to stay the sentence on the count for which punishment is precluded. (Ibid.) Accordingly, the question is whether Rey’s
convictions in counts 1 and 4 were the result of a single act or omission or an
indivisible course of conduct.
“‘Whether a course of
therefore gives rise to more than one act within the meaning of section 654
actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.’
[Citation.]†(
1208.)
“‘It is defendant’s intent and
objective, not the temporal proximity of his offenses, which determine whether
the transaction is indivisible.
[Citations.] … [I]f all of the offenses were merely incidental to, or
were the means of accomplishing or facilitating one objective, defendant may be
found to have harbored a single intent and therefore may be punished only
once. [Citation.]’ [Citation.]â€
(People v. Hicks (1993) 6
Cal.4th 784, 789.) “On the other hand,
if the evidence discloses that a defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other,
the trial court may impose punishment for independent violations committed in
pursuit of each objective even though the violations shared common acts or were
parts of an otherwise indivisible course of conduct. [Citations.]â€
(People v. Liu (1996) 46
Cal.App.4th 1119, 1135.)
“The defendant’s intent and
objective present factual questions for the trial court, and its findings will
be upheld if supported by substantial evidence.
[Citation.]†(
638, 640.)
Rey argues section 654 precludes
multiple punishment for counts 1 and 4 because both convictions were based on
the same act -- the driving of the vehicle that he did not own. He correctly points out that he was convicted
of violating Vehicle Code section 10851, subdivision (a) because he was
driving a vehicle he did not own without the owner’s consent, and also
correctly points out that he was convicted of violating Vehicle Code
section 2800.2, subdivision (a) because he drove this same vehicle in a
reckless manner. Since both convictions
arose out of the act of driving the vehicle, Rey asserts he is being punished
twice for the same act.
We disagree because there is
overwhelming evidence that he harbored separate intents and objectives when he
committed these two violations. As Rey
stated to the police, he obtained a vehicle he knew probably was stolen because
he needed transportation. His intent was
to drive from point A to point B. The
violation of Vehicle Code section 10851, subdivision (a) was complete when
he took possession of the stolen vehicle and drove away.
When he was observed by police
officers driving a stolen vehicle, his intent changed. He no longer was driving to reach point B; he
now was seeking to avoid arrest. The
attempt to escape was a separate act and had a separate intent. His conviction for violating Vehicle Code
section 2800.2, subdivision (a) resulted from the new act and intent and
therefore precludes application of section 654.
Rey also argues that section 654
precludes punishment for the Vehicle Code section 2800.2 because he had the
same intent as the conviction in count 3 for resisting arrest, in violation of
section 69. We disagree. There was substantial evidence that Rey also
had separate intents for these two convictions.
Undoubtedly, his intent when
fleeing the officers was to avoid arrest.
By the time he resisted arrest by kicking and swinging at the officers,
however, there was sufficient evidence that his intent was to harm the
officers, not escape arrest. By that
time he had been struck by the Taser, was down on the ground, and the officers
were wrestling with him in an attempt to place him in
be arrested and had formed a different intent -- to inflict as much harm on the
arresting officers as was possible.
Accordingly, section 654 does not apply in this case.
DISPOSITION
The
judgment is affirmed.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
KANE, J.
further statutory references are to the Penal Code unless otherwise stated.
2 was not submitted to the jury, although the reason it was not submitted is
unclear from the record.
